The law and marijuana, part 2   

A look at the law, science and politics of cannabis

Nev's Health Law

Neville M. Bilimoria

Neville M. Bilimoria is a partner in the health law practice group, in the Chicago office of Duane Morris.

December 2017

Unlike other health law issues, medical marijuana not only faces conflicting federal and state laws, but also conflicting principles of law, science and politics.

November’s column surveyed the landscape, so this month we’re taking a deeper dive into the fascinating ways those three areas intersect.


Twenty-nine states and the District of Columbia currently have laws broadly legalizing marijuana in some form. Seven states and the District of Columbia have adopted the most expansive laws legalizing marijuana for recreational use. California, Massachusetts, Maine and Nevada all passed measures in November 2016 legalizing recreational marijuana.

With these state medical marijuana laws, the public may have a false sense of security with marijuana, believing the police and the federal government are more lackadaisical than ever in prosecuting for marijuana possession and use. However, legally speaking, no one is in the clear. At any time, for example, the federal agents could enforce the federal prohibition and theoretically bust even state-compliant medical marijuana dispensaries and cultivation centers.

Thanks to the Department of Justice’s Cole Memo in 2009, the federal government has indicated it would not pursue enforcement against companies and individuals who are following state medical marijuana laws. However, the Cole Memo also reminds us that state laws have no effect on marijuana’s illegal status under federal law.

Also, at any time, the Centers for Medicare and Medicaid Services theoretically could find that medical marijuana use in Medicare/Medicaid nursing homes or hospitals might jeopardize Medicare or Medicaid certification, and, therefore, funding to those providers due to the federal prohibition. This has not happened. It could.


Here in Illinois, the legislature and the Illinois Department of Public Health have determined, nay codified, that 41 medical ailments can be treated with medical marijuana use, and the law was specifically written so that new ailments can be added for approved medical marijuana use in the future. Yet, the Food and Drug Administration, at the federal level, finds no therapeutic use for marijuana that would allow it to be an approved drug under FDA rules and guidelines.

Because of the FDA’s findings, medical marijuana still cannot be prescribed by a physician in its pure form, only state law mechanisms through cultivation centers and dispensaries allow patients to obtain medical marijuana through a highly regulated process.

That’s why you can’t pick up medical marijuana at your local pharmacy. That being said, certain cannabinoids in marijuana have been approved by the FDA for therapeutic use as late as this year:

1. Marinol (dronabinol) (1985): treats nausea from cancer chemotherapy

2. Cesamet (nabilone) (2006): treats nausea and neuropathic pain

3. Syndros (dronabinol) (2017): treats nausea and vomiting from chemotherapy and helps treat weight loss.


So why the disconnect? Is the federal government smarter than the states? I posit to you that the federal government’s reluctance to jump on the marijuana train is all about politics and America’s hangover from the battle with marijuana use in its history. Battling drug lords, destroyed lives from substance abuse and anti-marijuana campaigns have left a sour taste, and still do, to the Justice Department and Drug Enforcement Administration, the enforcers of illegal drug use.

There are thousands of studies about the beneficial use of medical marijuana for various diseases and for relief of symptoms. Obviously some of these studies have merit; our Illinois General Assembly certainly thinks so after creating its robust list of approved uses. But the federal government has been slow to come around.

In fact, in August 2016, the DEA reviewed marijuana and in a concerted effort, decided to decline to reschedule the drug under the act. It remains a Schedule I controlled substance, possessing “a high potential for abuse, ... no currently accepted medical use, ... [and] a lack of accepted safety for the use of the drug under medical supervision.”

Certainly, the legislatures in 29 states disagree that medical marijuana is of no therapeutic medical benefit. Also in 2016, the FDA completed an intensive review of published medical literature on medical marijuana and did not recommend that marijuana come off its prohibited Schedule I designation under the Controlled Substances Act.

Today, the Cole Memo remains as the Justice Department’s current enforcement position, but politics, and specifically Attorney General Jeff Sessions, make its future somewhat uncertain. At various times, Sessions has stated that “good people don’t smoke marijuana,” that he is dubious about the benefits of the drug, and he has demonstrated a willingness to rewrite the Cole Memo.

President Donald Trump, through his then-press secretary Sean Spicer, stated in February 2017 that marijuana should be a state issue.

For now, this state of the law, science and politics will have to suffice in giving comfort to a burgeoning marijuana industry. At this point, given its history, it seems that medical science, and eventually the politics supporting medical marijuana, will continue to gain momentum and will make any future legal hope of limiting the marijuana industry go up in smoke.